Archive for March 3rd, 2008

(Thanks to German political scientist Matthias Lehmphul for the guest post -ed.)

The last man — so far — to die in the gas chamber, Walter LaGrand, was executed by the state of Arizona on March 3rd, 1999. He was one of just 11 prisoners gassed among the 1,099 executions to date since the U.S. death penalty was reinstated in 1976.

The United States introduced the gas chamber as an execution method in the beginning of the last century. The first death row inmate ever executed with poisoned air was Chinese migrant Gee Jon, who died at the Nevada State Prison in 1924. Relative to the other methods in use at the time — the electric chair, hanging, and the firing squad — gas was believed the most humane way of taking a person’s life.

It took 70 years for a court to finally recognize it as cruel and unusual punishment. In 1994 a federal judge ruled that the gas chamber violated the eighth amendment of the U.S. Constitution. Shortly before Walter LaGrand’s scheduled execution, the Ninth Circuit Court of Appeals issued a stay whose logic would have banned lethal gas forever. This was overruled by the U.S. Supreme Court, leaving it as it remains today -– a backup or secondary option for putting a delinquent to death in five states: Arizona, California, Maryland, Missouri and Wyoming.

Death penalty for a murder in a bank

Walter LaGrand (top) and his brother Karl.

Walter LaGrand was following his brother Karl LaGrand, who Arizona had executed by lethal injection a week earlier. The brothers were sentenced to death on December 14th, 1984 for stabbing to death an employee of a bank in Marana, Arizona.

On January 7, 1982, 19-year-old Walter and 18-year-old Karl drove from Tucson to Marana to rob the Valley National Bank. Brandishing a toy gun, they ordered the bank manager, Ken Hartstock, to open the vault. Mr. Hartstock, however, did not have the complete combination. The brothers bound Mr. Hartstock’s hand together with electrical tape. When he attempted to shout at Karl, he was stabbed to death with a letter opener.

Another bank employee, Ms. Lopez, was in the room at the time of the murder. Her hands had also been bound, and she too suffered several stab wounds. She later became the state’s key witness.

When they were arrested, Karl LaGrand confessed to the killing and tried to shield his older brother from a capital murder charge by stating that Walter was not in the room when the stabbing occurred.

Ms. Lopez, however, testified that both brothers were surrounding Mr. Hartstock at the time of his death.

Between different worlds: A childhood without a home

At the time Walter and Karl LaGrand were born, their mother, Emma Maria Gebel, lived in Augsburg in what was then West Germany. The boys were cared for either by Emma’s mother or a babysitter. When Emma’s mom became ill and could no longer handle the children, the two kids were put into an orphanage.

During the two years they remained at this place they suffered an egregious lack of care. Deprivation of food and blankets were common punishments at this institution. When Emma took the boys back they already suffered insomnia and post-trauma disturbances. In 1966 Emma married Masie LaGrand, an American soldier stationed in Augsburg. He adopted the two boys and their older sister Patricia. Together they moved to the USA in 1967.

Soon their new dad was send to Vietnam. After returning from this war he never was the same; Emma and Masie divorced in 1973. The boys’ delinquent record can be tracked back to 1978 — when they first ran away from home and shoplifted.

Though Karl and Walter were adopted, they never were naturalized by the national immigration service. They remained German citizens — and that set the stage for another legal controversy in the days before their execution.

Power Politics: How the United States overrules international law

In a personal meeting with President Bill Clinton, German Chancellor Gerhard Schröder expressed his concerns about the fate of both brothers. However, the main argument was not the execution method but the lack of consular assistance by the time of arrest.

This article does not exempt foreign citizens from prosecution, nor does it give special rights under the law. It only insures that foreign nationals -– including Americans abroad –- have the means to defend themselves in a uniquely vulnerable situation. The United States and Germany are among the VCCR’s 169 signatories.

On January 22nd, 1998 the Special Rapporteur to the UN High Commissioner of Human Rights Bacre W. Ndiaye criticized the United States for its arbitrary disregard for treaty obligations like consular notification:

There seems to be a serious gap in the relations between federal and state governments, particularly when it comes to international obligations undertaken by the United States Government. The fact that the rights proclaimed in international treaties are already said to be a part of domestic legislation does not exempt the Federal Government from disseminating their provisions. Domestic laws appear de facto to prevail over international law, even if they could contradict the international obligations of the United States. (Extrajudicial summary on arbitrary executions, E/CN.4/1998/68/Add.3:C.108 — full document (.pdf))

Much too late, Germany opened a legal case against the United States on Walter LaGrand’s behalf at the International Court of Justice (ICJ) in The Hague, Netherlands.

Karl LaGrand has been already executed when Berlin filed suit against Washington. Justice Christopher Weeramantry urged the United States to spare the life of Walter LaGrand. The White House argued it was a matter of the State of Arizona, outside the purview of federal authority. Under extreme international pressure, the Arizona Board of Pardons and Paroles took an unprecedented step: for the first time ever, it recommended an 60-day reprieve to await the decision of Germany’s suit against the United States at the ICJ.

Past … and Prologue?

Walter and Karl LaGrand always had a close relationship and that did not change during their trial or time on death row. Until the end of 1998 they were celled beside one another and enjoyed the ability to talk freely. They held mirrors through the bars of their cells, so that they could see the other while talking. The chance to go out together on a work crew (when they were allowed to work) always excited them due to the fact that they were then able to see each other. In fact, they were emotionally so close that, if they have to die, they had expressed a preference to be executed on the same day.

Given a choice in their method of execution, both brothers tactically opted for the gas chamber to give the legal challenges to lethal gas a chance to save them. With those challenges foundering, both were offered a late switch to lethal injection in exchange for dropping suit.

Karl took the deal. Walter, as the New York Times put it, “opted for the gas, with its resonance of the Holocaust for Germans.”

Before the executioner switched the lever to initiate a chemical reaction between cyanide pellets (KCN) and sulfuric acid (H2SO4) the inmate was given his last words. Walter LaGrand said:

To all my loved ones, I hope they find peace. To all of you here today, I forgive you and hope I can be forgiven in my next life.

This date’s gassing with hydrogen cyanide (HCN) took 18 minutes until the heart of Walter LaGrand stopped beating. While the execution took place witnesses left the room nauseated.

Will history repeat? There are some 125 foreign nationals on death row in the United States today. Another pair of German brothers, Michael and Rudi Apelt, are as of this writing waiting to be put to death in Arizona — perhaps, if they choose it, in the same gas chamber where Walter LaGrand perished.

Legal and diplomatic fallout

Still smarting from the LaGrands’ execution, German foreign minister Joschka Fischer said at the 55th Session of the Commission on Human Rights in Geneva on March 23rd, 1999:

States whose justice system kill are not meeting their responsibility to set an example to society. Europeans believe that the death penalty cannot be justified either ethically or legally and has not proved to be an effective means of combating crime.

The ICJ ruled in favor of Germany‘s LaGrand suit on June 26th, 2001, more than two years after the brothers had been put to death. It was the first time that a country won a case against the United States on this matter.

In 2005, facing multiplying challenges from death-sentenced foreign nationals similarly denied their rights under the VCCR, the Bush administration formally withdrew the United States from the ICJ’s oversight for such cases.